Sealed Case, In re
| Decision Date | 26 May 1998 |
| Docket Number | 98-3053,Nos. 98-3052,s. 98-3052 |
| Citation | 162 F.3d 670 |
| Parties | , 50 Fed. R. Evid. Serv. 731 IN RE: SEALED CASE & 98-3059. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Nathaniel H. Speights filed the briefs for appellant Monica Lewinsky.
Charles J. Ogletree, Jr. filed the briefs for appellant Francis D. Carter, Esq.
Robert J. Bittman, Deputy Independent Counsel, filed the briefs for cross-appellant the United States.
BEFORE: GINSBURG, RANDOLPH, and TATEL, Circuit Judges.
Upon consideration of the responses of Francis D. Carter and of the United States of America, acting through the Office of the Independent Counsel, to the Court's order to show cause why the opinion in this case should not be unsealed, it is
ORDERED, that the opinion in this case is no longer protected from public disclosure by Rule 6(e), FED.R.CRIM.P., in view of the public release, by the House Committee on the Judiciary, of Mr. Carter's grand jury testimony transcript, see H.R. Doc. 105-316, at 393-433 (Sept. 28, 1998); and it is further
ORDERED, that the judgment and opinion of this Court in In re: Sealed Case, No. 98-3052 , shall be unsealed; and it is further
ORDERED, that the order to show cause is discharged; and it is further
ORDERED, pursuant to this Court's Local Rule 47.1(c), that the following materials also shall be unsealed:
1. Motion of the United States of America for Summary Dismissal of Appeal of Francis D. Carter, Esq., for Want of Jurisdiction (May 1, 1998);
2. Motion of the United States of America to Expedite Consideration of the Appeal and for an Abbreviated Briefing Schedule (May 1, 1998);
3. Motion of Francis D. Carter for Extension of Time to File Opposition to Motion for Summary Dismissal and Motion to Set Briefing Schedule (May 5, 1998);
4. Response of the United States of America to Motion for Extension of Time to File Opposition to Motion for Summary Dismissal and Motion to Set Briefing Schedule (May 5, 1998) 5. Order of this Court granting motion to expedite and setting briefing schedule (May 5, 1998);
6. Brief of Cross-Appellant United States (May 11, 1998);
7. Cross-Appellant's Appendix (May 11, 1998);
8. Brief for Appellant Francis D. Carter, Esq. (May 11, 1998);
9. Appendix for Appellant Francis D. Carter, Esq. (May 11, 1998);
10. Opening Brief of Appellant Monica Lewinsky (May 11, 1998);
11. Appendix of Appellant Monica Lewinsky (May 11, 1998);
12. Request for Judicial Notice by Appellant Monica Lewinsky (May 11, 1998);
13. Brief of Appellee United States (May 14, 1998);
14. Brief for Cross-Appellee Francis D. Carter, Esq. (May 14, 1998);
15. Reply Brief for Appellant Francis D. Carter, Esq. (May 15, 1998);
16. Reply Brief of Appellant Monica Lewinsky (Lodged May 15, 1998);
17. Reply Brief of Cross-Appellant United States (May 15, 1998);
18. Motion to Night File Reply Brief of Monica Lewinsky (May 19, 1998);
19. Order of this Court granting leave to file lodged reply brief out of time (May 26, 1998);
20. Order of this Court to show cause why the opinion in this case should not be unsealed (Nov. 16, 1998);
21. Response of the United States of America to the November 16, 1998 Order to Show Cause (Nov. 23, 1998);
22. Response of Francis D. Carter to Order to Show Cause Why Opinion Should Not Be Unsealed and Motion to Unseal Entire Record (Nov. 23, 1998).
Opinion for the Court filed by Circuit Judge RANDOLPH.
In 1997, Monica S. Lewinsky, a former White House intern, received a subpoena to produce items and to testify in Paula Jones v. William Jefferson Clinton, a civil matter then pending in the United States District Court for the Eastern District of Arkansas. The subpoena requested, among other things, documents relating to an alleged relationship between President Clinton and Lewinsky and any gifts the President may have given her. Lewinsky retained Francis D. Carter, Esq., to represent her regarding the subpoena.
Carter drafted an affidavit for Lewinsky, which she signed under penalty of perjury. The affidavit, submitted to the Arkansas district court as an exhibit to Lewinsky's motion to quash the subpoena, states in relevant part:
I have never had a sexual relationship with the President, [and] he did not propose that we have a sexual relationship.... The occasions that I saw the President after I left my employment at the White House in April, 1996, were official receptions, formal functions or events related to the U.S. Department of Defense, where I was working at the time. There were other people present on those occasions.
On January 16, 1998, at the request of the Attorney General, a Special Division of this Court expanded the jurisdiction of the Office of Independent Counsel to include "authority to investigate ... whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law ... in dealing with witnesses, potential witnesses, attorneys, or others concerning the civil case Jones v. Clinton." Order of the Special Division, Jan. 16, 1998. On February 2 and 9, 1998, as part of that investigation, a grand jury issued subpoenas to Carter, the first for documents and other items, the second for his testimony. Carter moved to quash the subpoenas, contending, inter alia, that the documents, testimony, and other items sought were protected from disclosure by the attorney-client privilege, the work-product privilege, and Lewinsky's Fifth Amendment privilege against self-incrimination. Lewinsky as the real-party-in-interest, filed a response in support of Carter's motion. The United States opposed the motion, arguing among other things that the crime-fraud exception vitiated any claims of attorney-client or work-product privilege and that the Fifth Amendment did not bar production of the requested materials. The district court ordered Carter to comply with the two grand jury subpoenas except to the extent that compliance would "call for him to disclose materials in his possession that may not be revealed without violating Monica S. Lewinsky's Fifth Amendment rights."
Carter and Lewinsky argue in separate appeals that the district court erred in rejecting their motions to quash the grand jury subpoenas in their entirety. In its cross-appeal, the United States, through the Office of Independent Counsel, claims that the Fifth Amendment does not bar production of any of the materials the grand jury subpoenaed from Carter.
We dismiss Carter's appeal for want of jurisdiction. Well-settled law dictates that "one to whom a subpoena is directed may not appeal the denial of a motion to quash that subpoena but must either obey its commands or refuse to do so and contest the validity of the subpoena if he is subsequently cited for contempt on account of his failure to obey." United States v. Ryan, 402 U.S. 530, 532, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971); see Cobbledick v. United States, 309 U.S. 323, 328, 60 S.Ct. 540, 84 L.Ed. 783 (1940); In re Sealed Case, 107 F.3d 46, 48 n. 1 (D.C.Cir.1997). Rather than risking contempt, Carter has sworn that he will comply with the subpoenas if ordered to do so. 1
Our jurisdiction over Lewinsky's appeal is another matter. Lewinsky is the holder of the privilege. Given Carter's sworn declaration that he will give testimony if ordered, she is entitled to appeal the district court's ruling rejecting Carter's assertion of the privilege. See In re Sealed Case, 107 F.3d at 48 n. 1.
The district court held that the crime-fraud exception to the attorney-client privilege applied. After reviewing the government's in camera submission, the court found that "Ms. Lewinsky consulted Mr. Carter for the purpose of committing perjury and obstructing justice and used the material he prepared for her for the purpose of committing perjury and obstructing justice." 2 Lewinsky tells us she could not have committed either crime: the government could not establish perjury because her denial of having had a "sexual relationship" with President Clinton was not "material" to the Arkansas proceedings within the meaning of 18 U.S.C. § 1623(a); and her affidavit containing this denial could not have constituted a "corrupt[ ] ... endeavor [ ] to influence" the Arkansas district court within the meaning of 18 U.S.C. § 1503. Both of Lewinsky's propositions rely on the Arkansas district court's ruling on January 30, 1998, after Lewinsky had filed her affidavit, that although evidence concerning Lewinsky might be relevant, it would be excluded from the civil case under FED.R.EVID. 403 as unduly prejudicial, "not essential to the core issues in th[e] case," and to prevent undue delay resulting from the Independent Counsel's investigation. 3
A statement is "material" if it "has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a [particular] determination." United States v. Barrett, 111 F.3d 947, 953 (D.C.Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 176, 139 L.Ed.2d 117 (1997). The "central object" of any materiality inquiry is "whether the misrepresentation or concealment was predictably capable of affecting, i.e., had a natural tendency to affect, the official decision." Kungys v. United States, 485 U.S. 759, 771, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988). Lewinsky used the statement in her affidavit, quoted above, to support her motion to quash the subpoena issued in the discovery phase of the Arkansas litigation. District courts faced with such motions must decide whether the testimony or material sought is reasonably calculated to lead to admissible evidence and, if so, whether the need for the testimony, its probative value, the nature and importance of the litigation, and similar factors outweigh any burden enforcement of the subpoena might impose. See FED.R.CIV.P. 26(b)(1), 45(c)(3)(A)(iv); Linder v. Department of...
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